Universal Life Insurance Co.

National Labor Relations Board - Board Decisions

Feb 29, 1968

169 N.L.R.B. 1118 (N.L.R.B. 1968)

1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Universal Life Insurance Company and Office &
Professional Employees International Union, Local
367. Cases 26-CA-2709 and 26-CA-2827
February 29, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On November 1, 1967, Trial Examiner James T.
Barker issued his Decision in the above-entitled
proceedings, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices in violation of the National Labor
Relations Act, as amended, and recommending
that Respondent cease and desist therefrom and
take certain affirmative action, as set forth in the at-
tached Trial Examiner's Decision. The Trial Ex-
aminer also found that the Respondent had not en-
gaged in certain other unfair labor practices alleged;
in the complaint and recommended dismissal as to
them. Thereafter, the Respondent filed exceptions
to the Trial Examiner's Decision and a supporting
brief, and the General Counsel filed cross-excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only to the extent con-
sistent herewith:
1. The Trial Examiner found that Respondent,
by providing Memphis home office employees with
transportation, per diem, and other expenses in-
cident to their trip to Houston, Texas, to attend an
annual awards event, by granting an increase in
Christmas bonus to unit employees, and by reinstat-
ing Good Friday as a paid holiday for unit em-
ployees, violated Section 8(a)(1). The Trial Ex-
aminer found, with respect to the three incidents,
detailed below, that "there existed a sound basis for
each of the determinations made which resulted in
the modification of employee benefits." He con-
cluded, however, that this was "not significant" in
view of "the underlying motivation of Respondent
in granting the benefits." This underlying motiva-
tion, according to the Trial Examiner, was
"disparagement of the Union in its present role and
denigration of its value as an intermediary and
representative of unit employees in the future." We
do not agree.
The evidence shows that Office & Professional
Employees International Union, Local 367,
hereinafter referred to as the Union, was certified
as the exclusive collective-bargaining representa-
tive in a unit of office employees of Respondent's
Memphis, Tennessee, office, on May 10, 1966.
Thereafter, on July 8, 1966, an economic strike
commenced in which 64 of the 99 employees in the
bargaining unit participated. The striking em-
ployees offered to return to work on or about Sep-
tember 12. Respondent informed them that all
striking employees had been permanently replaced,
prior to the date of their request, and their offer was
refused.
(a) According to the credited testimony of
Respondent's witnesses, Respondent decided in
1965 that a bonus liberalization was economically
justified. In late November 1966 the Respondent
decided it would pay the larger Christmas bonus.
As the employee complement was comprised pre-
ponderantly of employees with less than 1 year's
service, the funds available for bonus purposes
would not have been fully utilized under the exist-
ing bonus formula. Therefore, Respondent revised
this formula and by letter of December 9, Respond-
ent informed the Union of the provisions of the
liberalized Christmas bonus plan which it desired to
institute. The letter stated: "If we do not hear from
you by December 13, we will assume you have no
objections." The Union replied on December 13,
giving its assent to the institution of the plan.
The industrial realities inherent in a Christmas
bonus plan, such as yearend economic decisions
and mathematical calculations based on annual ac-
counting, make the timing element of short notice
and limited deadline less significant as an indication
of motive than this would be in the granting of other
benefits during bargaining. It is clear that had the
Union desired bargaining, concerning the increase
in the bonus payment or the revision of the formula
for distribution, it could have so notified the
Respondent, even up to the deadline date when it
chose to give its consent to the Respondent's
proposal. Respondent was required to act on the
Christmas bonus within these same time limits even
to maintain the status quo. Accordingly, we make
no adverse inference as to Respondent's motive
based on timing.
(b) For a number of years prior to 1966, Respond-
ent had held an annual awards event at the home
office in Memphis, Tennessee, which was attended
by employees from the field offices of Respondent's
10-State operation. Respondent decided to hold the
1966 annual awards event in Houston, Texas. Ac-
cording to the credited testimony, the Respondent's
decision to depart from the previous practice of
holding the event in Memphis, was dictated by
169 NLRB No. 165
UNIVERSAL LIFE INSURANCE COMPANY 1 119
picketing and the strike-generated atmosphere that
existed there during September 1966, which it
deemed not conducive to a successful event.
The Union was informed on September 22 of
Respondent's intentions to hold the awards event
in Houston, in November, and, in response to
Respondent's inquiry as to whether or not the
Union had any objections, Murphy, the president
of the Local, told Respondent that she thought the
Houston trip would be a "nice trip." On or about
October 6, Murphy reiterated the Union's position,
stating "that's a nice trip for the girls."t In acquiesc-
ing to Respondent's plan, the Union raised no
question concerning the attendant arrangement and
benefits and is therefore presumed to have left such
matters to the Respondent.
(c) In the past, Respondent granted Good
Friday as a paid holiday to its employees in the col-
lective-bargaining unit when it did not occur during
a peak activity period. Thus, it granted the holiday
during the years 1963 through 1965. It did not do so
in 1966. In bargaining sessions with the Union, the
Respondent took the position that Good Friday
should not be a contract holiday as this day periodi-
cally fell at or just after the end of the first calendar
quarter, when manpower needs of its business are
particularly heavy. In 1966, Good Friday fell on
April 8; in 1967, it was on March 24. The Union
first became aware of Respondent's intention to ob-
serve Good Friday as a paid holiday in 1967, during
a March 16 telephone conversation. In a sub-
sequent telegram, Respondent stated: "We propose
to grant to employees Good Friday as holiday this
year as same occurs before our quarter ends on
March 31, and will not interfere with post-quarter
processing for field accounting. Please advise if you
have objection." The Union acceded to the Em-
ployer's proposal. Not only was this benefit given
with the Union's consent, but it also was in accord
with the practice in existence when the Union was
selected as the bargaining representative and may
be viewed as maintenance of the status quo.
As indicated by the foregoing, the record
establishes that each benefit was put into effect only
after Respondent obtained the acquiescence of the
bargaining representative. We note, too, the lack of
any evidence showing that Respondent attempted
to publicize to employees its so-called bene-
ficence, or any effort on its part to create a belief
among employees that the benefits here involved
were something other than the product of normal
collective bargaining. Of course, if it were
established that Respondent adopted this approach
for the purpose of impinging upon employees' Sec-
tion 7 rights, such conduct would be unlawful.2
However, the Trial Examiner does not identify any
evidence of such intent, and, in these circum-
stances, we are unable to attribute an unlawful mo-
tive to Respondent. Accordingly, we find, contrary
to the Trial Examiner, that Respondent's actions
were not violative of Section 8(a)(1) of the Act.
2. On June 5, 1967, after the certification year
had expired, Respondent withdrew recognition of
the Union as bargaining representative, claiming on
the basis of certain "objective" evidence, a good-
faith doubt that the Union continued to represent a
majority of the employees in the unit. The Trial Ex-
aminer, relying on the Board's decision in C & C
Plywood Corporation and Veneers, Inc., 3 found
that Respondent's 8(a)(1) violations precluded it
from raising the majority issue in good faith. How-
ever, as Respondent has not been found to have
otherwise violated the Act, Respondent was not
precluded from questioning the Union's continued
majority status upon expiration of the certification
year on May 9, 1967, provided it could demon-
strate by objective considerations that it had a
reasonable basis for believing that the Union has
lost its majority status since its certification.4 Here,
on May 18, 1967, the Union's chief negotiator, in
conversation with Respondent's attorney, con-
ceded that the Union no longer represented a
majority, and went on to state, "What do you ex-
pect with a bunch of scabs in there?" In light of this
admission on the part of the Union, we cannot say
that the Respondent's asserted doubt as to the
Union's representative status was unreasonable,
unsupported, or urged in bad faith. Accordingly, we
find that Respondent's withdrawal of recognition on
June 5 did not violate Section 8(a)(5) of the Act.
We shall, therefore, dismiss the complaint in its
entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
i Respondent offered evidence of a conversation between Union Inter-
national Representative Bloodworth and Respondent's attorney Wein-
traub to the effect that Bloodworth told Weintraub that the Union had no
objections "whatsoever" to the trip The evidence was incorporated in the
record under an offer of proof which was rejected by the Trial Examiner
The Trial Examiner, in his Decision, decided that his ruling in this matter
was erroneous, and he considered and credited this evidence. We agree
with the General Counsel that this evidence cannot be relied on as
General Counsel has not had an opportunity to cross -examine Respond-
ent's witness on this matter , or to offer rebuttal evidence.
Z Cf N.L R.B v Exchange Parts Co, 375 U.S 405 , 409, 410 There,
the Supreme Court found that the employer violated 8(a)(1) by granting
benefits "for the purposes of inducing the employees to vote against the
union " The Court went on to state that "when as here the motive is other-
wise established , an employer is not free to violate Section 8 (a)(1) by con-
ferring benefits simply because it refrains from other , more obvious viola-
tions "
3 163 NLRB 1022.
4 United States Gypsum Company, 157 NLRB 652.
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES T. BARKER , Trial Examiner: Upon a charge filed
on March 16, 1967, and a first amended charge filed on
July 17, 1967, by Office & Professional Employees Inter-
national Union, Local 367, hereinafter called the Union,
the Regional Director of the National Labor Relations
Board for Region 26, on May 18, 1967, issued an order
consolidating cases , consolidated complaint, and notice
of hearing alleging violations of Section 8(a)(1) and (5) of
the National Labor Relations Act, as amended,
hereinafter called the Act.
Pursuant to notice a hearing was held before me at
Memphis , Tennessee, on September 12, 1967. All parties
were represented at the hearing , accorded full opportuni-
ty to be heard, to introduce relevant evidence, to present
oral argument , and to file briefs with me. The parties
waived oral argument and on October 17, 1967, filed
briefs with me.
Upon the entire record of the case' and my observation
of the witness, and after due consideration of the briefs
filed with me, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent has been at all times material herein
a Tennessee corporation engaged in the life, health, and
accident insurance business , with its principal office and
place of business located at Memphis, Tennessee, and
with branch offices located at other cities in the United
States , including Houston , Texas.
During the 12-month period immediately preceding the
issuances of the complaint herein , Respondent provided
services valued in excess of $50,000 directly to points
located outside the State of Tennessee. During the same
period of time Resnondent paid in excess of $50,000
directly to policyholders located outside the State of Ten-
nessee.
Upon the foregoing admitted facts, I find that Respond-
ent has been at all times material an employer engaged
in operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges and the answer concedes that
Office & Professional Employees International Union,
Local 367, is a labor organization within the meaning of
Section 2(5) of the Act, and I so find.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
Under the pleadings in this proceeding there are
presented four principal issues : (a) whether Respondent
engaged in conduct violative of the rights guaranteed
under Section 7 of the Act by granting, during the certifi-
cation year, certain benefits to unit employees; (b)
whether in refusing to post on the company bulletin board
certain union notices Respondent violated Section 8(a)(5)
of the Act; (c) whether by virtue of the foregoing conduct
Respondent was precluded, subsequently, after the ex-
piration of the certification year, under the Celanese
doctrine, from questioning the Union's majority in good
faith; and (d) whether in declining to bargain with the
Union in the foregoing circumstances, after the certifica-
tion year had expired, Respondent violated Section
8(a)(5) of the Act.
B. Alleged Interference, Restraint, and Coercion
1. Prefatory facts
On May 10, 1966, the Regional Director of the Na-
tional Labor Relations Board for Region 26 certified the
Union as the exclusive collective-bargaining representa-
tive of employees in the following described unit:
All office employees at Respondent's Memphis,
Tennessee, office, including clerical employees,
clerks, secretaries, typists, audit clerks, machine
operators, computer programmers, keypunch opera-
tors, researchers (file clerks), statistical clerks, chief
clerks, nurse, PBX operator, printer, messenger,
custodians, and janitors, but excluding all salesmen,
debit agents, watchmen, guards, and supervisors as
defined in the Act.
Thereafter, on July 8, 1966, an economic strike com-
menced in which 64 of the 99 employees in the bargaining
unit participated. The striking employees offered to
return to work on or about September 12, however, they
were informed by Respondent that prior to the date of
their request all striking employees had been replaced.
Their offer was refused.2
2. The bonus formula charge
The stipulation of the parties establishes that during a
telephone conversation on December 9, between
representatives of the Respondent and the Union, the
Union first became aware of Respondent's plan to effect
changes in the Christmas bonus plan.
By letter of December 9, confirming the aforesaid con-
versation, Respondent informed the Union of the provi-
sions of the liberalized Christmas bonus plan which it
desired to institute . The closing sentence of the letter
read: "If we do not hear from you by December 13, we
will assume you have no objections." The Union received
the letter on December 10.
For approximately 20 years there had been in effect a
bonus plan for employees, however, over the years,
changes had been wrought in the bonus formula. In the
fall of 1965, Respondent's planning committee3 had stu-
died the Company's employee wage structure and benefit
program and the study had revealed that Respondent's
wage level was below that extant in the community. Pur-
suant to the study a 15-cent-per-hour wage increase was
effectuated in 1965. Improvements in fringe benefits had
been deferred until 1966 in favor of the wage increase.
' Pursuant to motions of counsel for the General Counsel and Respond-
ent the transcript errors are noted and corrected.
2 All of the foregoing is based upon the written stipulation of the parties,
received in evidence at the hearing.
3 The planning committee is comprised of officers and heads of depart-
ments of the Respondent.
UNIVERSAL LIFE INSURANCE COMPANY 1121
In late November 1966 the Respondent decided upon
a liberalization of its Christmas bonus. This increase
derived from the Company's 1965 determination that a
bonus liberalization was justified and from practicalities
emanating from the strike-borne composition of its 1966
work force. Thus, as the employee complement was com-
prised preponderately of employees with less than I
year's service Respondent found that the funds available
for bonus purposes would not be fully utilized under the
existing bonus formula. Under the revised formula total
bonus dispersements were approximately $2,000 greater
than would have been the case under the existing formu-
la.4 Length of service was a salient factor of the new
bonus formula.5
In this regard, the stipulation of the parties establishes
that as a result of the changes effected in the Christmas
bonus plan most employees received a larger bonus than
they would have received under the previously existing
plan. Moreover, the stipulation of the parties establishes
that approximately 77 of the 102 employees of Respond-
ent in the appropriate collective-bargaining unit who
received the Christmas bonus on or about December 23,
1966, had less than 1 year's employment with Respond-
ent.
On December 13 the Union dispatched to Respondent
a telegram containing the following:
This is in response to your letter of December 9,
1966, regards Universal Life Insurance Company
which you discussed with Mrs. Jenny Lee Murphy,
president of Local 367 OPEIU with respect to the
"Company's desire to change its Christmas bonus
plan." You have asked that we transmit to you the
Union's reactions to the changes proposed by the
Company not later than December 13, 1966.
I pointed out in our telephone conversation this
morning that the Union would greatly appreciate
ample time to consider such proposals and we regret
that this factor was not taken into consideration in
the presentation of your suggested changes of the
Christmas bonus plan.
We are indeed hopeful that in the future, you will en-
deavor to provide the Union more than four (4) days
for consideration of such an integral part of the work-
ing relationship which we both have with the em-
ployees of Universal Life Insurance Company.
We are pleased to learn of the new program involving
some increased Christmas bonus to the Universal
Life employees and while it is not completely
satisfactory to us, we will reserve more detailed com-
ment about its contents when negotiations are
resumed between the parties in January, 1967.
We should like to set forth herein that we strongly
object to the policy of exclusion of a substantial
number of employees who have devoted long years
of service and dedication to the Universal Life In-
surance Company.
We deeply regret that a more equitable formula has
not been considered that would include these em-
ployees with long tenure who were a part of the
Company, not only over the years, but until July 8,
1966. Discussions with respect to the future rein-
statement of these employees have been discussed
with top company officials and this matter is now
under consideration which will also be discussed
when negotiations are resumed.
We are confident that these employees should share
in the Christmas bonus, a matter which we will also
devote some attention to when negotiations are
resumed. Since the Union most assuredly does not
wish to serve as a hindrance to the distribution of this
Christmas bonus which we understand is to take
place the day before Christmas, 1966 based on a pol-
icy established by the executive committee, our ob-
jections to certain aspects of the Christmas bonus
plan is not designed to prevent the Company from
following their traditional policy.
We reserve the right, however, as stipulated herein
above, to discuss our detailed objects to the total
Christmas bonus plan, including those now excluded,
and other aspects of the plan when our negotiations
are resumed.
On the same day, December 13, Respondent sent a
letter to the Union which the Union received on
December 14. The letter read as follows:
This will confirm our conversation by telephone of
this date with respect to the Company's proposed
revisions in its bonus plan. You raised the question
as to whether or not bonuses would be paid to the
employees who had been replaced during the strike,
and indicated that your decision would depend upon
the answer to this question. I advised you that I
would have to obtain the answer from the Company
and would advise you promptly. After talking to the
Company, I advised you that it is not the Company's
policy to pay bonuses to individuals who are not in
the employ of the Company at the time such bonuses
are given. Even though the only question you raised
was answered, you, nevertheless, refused to state
what, if any, objections you had to the Company's
proposed revisions. I advised you that because of the
nature of the problem, the decision would have to be
made promptly. You would not give me any as-
surance as to when you would advise me whether
you had any objections and the nature of such objec-
tions, but would only state that you would send me
a letter within the next few days. Accordingly, I ad-
vised you that if we did not hear from you by Friday
morning's mail, we would assume that you had no
objections.
Subsequently, on December 16, the Union sent
Respondent a copy of progress report it had distributed
to each of its members concerning the status'of collective
bargaining with Respondent. In pertinent part the
progress report read as follows:
You will be pleased to learn that negotiations will
commence after the first of the year (1967) for the
purpose of resolving issues which were not
completed during the earlier negotiating sessions. As
the collective bargaining agent for the Universal Life
Insurance Company Employees, Local 367 OPEIU,
we should like to report that the Union was con-
A Under the old formula a total of $1,215 would have been paid in 1966
as contrasted to approximately $3,200 actually paid. In 1965 approxi-
mately $2,400 was paid in Christmas bonuses.
5 John Parker testified that the Respondent intended, at a scheduled
December 6 bargaining session, to discuss with the Union the subject of
a revised bonus formula. The December 6 meeting was not held. The sub-
ject of the Christmas bonus had not been raised during negotiations by
either party to the negotiations, which transpired pursuant to the Union's
May 10 certification
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tacted by Universal Life Insurance Company
representatives involved in the contract negotiations
pursuant to proposed changes in the Christmas
Bonus Program initiated by the insurance company
earlier.
We are enclosing herewith a copy of the letter
dated December 9, 1966, to President Jenny Lee
Murphy regarding the changes in the Christmas
Bonus Plan and the Union's reply to the Universal
Insurance Company with respect to the plan.
Thereafter, on December 20, the Union directed a
letter to Respondent's counsel which read as follows:
This is in response to your letter of December 13,
1966, and our telephone conversation regarding the
proposed revised Christmas bonus plan to be ex-
ecuted by the Universal Life Insurance Company as
was stipulated in your letter to us of December 9,
1966.
Since we have discussed with Mr. Gilliam the
origin of the Christmas bonus plan, we transmitted to
you in our wire of December 13, 1966, our reaction
and reservations to acceptance of the plan. Of
course, we were unable to transmit this information
during the telephone conversation, since we had not
received this information from the Company.
You will please note in our wire of December 13,
1966, which you have received, that there were
several related questions involved in the Christmas
bonus plan to which we strongly object and about
which, we reserved comments until such time as
negotiations are resumed.
We were advised by the Company that the Christ-
mas bonus is usually paid the day before Christmas,
but notwithstanding this factor, we did respond in the
short time allowed us from December 9 to 13, 1966.
We look forward to seeing you at the time negotia-
tions are resumed.
3. The annual awards event
For a number of years prior to 1966, Respondent had
held an annual awards event at the home office in Mem-
phis, Tennessee, which event was attended by employees
employed in the field offices of Respondent's 10-State
operation. Historically, the field employees would arrive
in Memphis on Friday and the home office employees
would host the event. Upon the arrival of the field em-
ployees in Memphis , they would be welcomed by home
office employees and given a tour of the home office
building. The awards banquet would be held on Saturday
night.6
In early August 1966, the decision was made to hold
the annual awards event in Houston, Texas, and field em-
ployees were informed of this decision in late August.
The event is the culmination of a series of contests and re-
lated activities which commence in September- Re-
spondent's Founders Month-and climax in November
with the selection of a Miss Universal 7 and the granting
of certain awards.
6 The foregoing is predicated upon the credited testimony of Bernice
Bridgeforth and Willie Mae Alexander.
7 The Miss Universal contest was made a feature of the awards event in
1957 or 1958.
8 The pleadings establish the per diem rate at $5 per day, although John
According to the credited testimony of John Parker,
Respondent's director of employee relations, the Com-
pany's decision to depart from its previous practice of
holding the annual awards event in Memphis and to
transfer it to Houston was dictated by the strike-
generated atmosphere that existed in Memphis during
September 1966 which was not deemed conducive to the
holding of a successful event. According to the further
credited testimony of Parker, Houston was chosen as the
site for the event because it was the location of one of
Respondent 's largest and most sucessful offices and
because of geographic considerations which rendered it
central to Respondent's nationwide operation.
Approximately 150 employees attended the annual
awards event in Houston in 1966. Seventy of these em-
ployees were from the Memphis home office. Twenty-
five of the home office employees who attended had in
excess of 1 year's service with the Company, whereas the
remainder had less than 1 year. The ratio of home office
to field employees attending the 1966 event was essen-
tially the same as that of those who had participated in the
1965 event in Memphis.
The home office employees who attended the 1966
Houston event left Memphis on Thursday morning at 9
a.m. and arrived in Houston at approximately 9:30 a.m.
on Friday. In returning to Memphis from Houston they
departed Houston at approximately 9:30 a.m. Sunday
morning and arrived in Houston at 1:15 a.m. Monday
morning. The home office employees who attended the
Houston event received salary for Thursday and Friday
but received no extra salary for Saturday and Sunday. In
addition, the home office employees attending the
Houston event received $5 per day per diem8 plus their
lodging and chartered bus transportation. The Memphis
home office was closed on the Thursday and Friday
preceding the annual awards event and the 29 unit em-
ployees who remained in Memphis and who did not at-
tend the Houston event were paid their regular salaries
for Thursday and Friday.
John Parker further testified that although the Respond-
ent and Union were engaged in collective-bargaining
negotiations during August he did not consult with the
Union concerning the Company's intention to change the
location of the annual awards event.
However, Respondent' s counsel , Fletcher Hudson,
testified that on September 22 he conversed by telephone
with Union Representative Jenny Lee Murphy concern-
ing the scheduling of a collective-bargaining meeting
which the Union had earlier, by letter, requested. During
the conversation Hudson mentioned to Murphy the Com-
pany's desire to take its home office employees to
Houston for the annual awards event and inquired if she
had any objections. In response Jenny Lee Murphy
stated that she thought the Houston trip would be a "nice
trip" and stated that she had no objections but that she
desired to consult with Oscar Bloodworth, the Interna-
tional Representative of the Union who was acting as a
spokesman for the Union in the collective-bargaining
negotiations. Murphy stated that she would let Hudson
know the Union's position.9
Parker erroneously testified the rate was $6 per day.
I have considered the testimony of Fletcher Hudson on direct and
cross-examination and his September 22 memorandum to the file which
is in evidence in this case and credit his testimony with reference to the
September 22 conversation between him and Murphy.
UNIVERSAL LIFE INSURANCE COMPANY
Samuel Weintraub, counsel for Respondent, also
testified that at the collective-bargaining meeting on Oc-
tober 6 the subject of the Houston trip for home office
employees arose and Murphy commented, "that's a nice
trip for the girls."10
Subsequently Samuel Weintraub asked Oscar Blood-
worth whether the Union objected to the trip for Mem-
phis employees and Bloodworth answered "none
whatsoever."11
4. The Good Friday holiday
During the years 1963 through 1965, Respondent
granted Good Friday as a paid holiday to its employees
in the collective-bargaining unit here relevant. It did not
do so in 1966.
In bargaining sessions which transpired between
Respondent and the Union following the Union's May
1966 certification, the Union proposed that Respondent
continue to grant Good Friday as a paid holiday to its em-
ployees. This proposal was discussed by the parties in
bargaining sessions. The Respondent took the position
that Good Friday should not by contract be made a paid
holiday. In support of this bargaining position Respond-
ent gave as a reason the fact that periodically Good
Friday fell at, or very near, the end of the first calendar
quarter of the year and that observance of it as a holiday
would interfere with the post-quarter processing of field
accounts.
During a March 16, 1967, telephone conversation
between Jenny Lee Murphy and Fletcher Hudson, the
Union first became aware of Respondent's intention to
observe Good Friday as a paid holiday in 1967.
Thereafter, Respondent sent the Union a telegram
which read as follows:
Confirming our telephone conversation today, we
propose to grant to employees Good Friday as
holiday this year as same occurs before our quarter
ends on March 31, and will not interfere with post-
quarter processing for field accounting. Please advise
if you have objections.
Good Friday occurred on March 24, 1967, and 3 days
later on March 27, the Union sent to Respondent the fol-
lowing telegram:
Re: Good Friday holiday Union favors all benefits
to employees; especially their right to the fulfillment
of their commitments to their religious faith. We
strongly protest method and reason for your present
action. This unfair labor practice is obviously
designed to influence employees against the Union.
Also, to undermine our collective bargaining. Also,
your usual pattern of insufficient time to reply or for
consultation. We object to this obvious and flagrant
10 Weintraub testified that Murphy made this statement in "a honied
voice. Weintraub was steadfast in his testimonial insistence that Murphy
had rendered the remark which he attributed to her. He conceded that the
remark may have been made at a time and place different from the Oc-
tober 6 collective-bargaining meeting to which he testified. Jenny Lee
Murphy testified, in contradiction to Weintraub, that she did not attend
the October 6 meeting but was on vacation in Seattle, Washington, on Oc-
tober 6 However, she did not deny the remarks attributed to her by Wein-
traub. I credit Weintraub to the extent of finding that Murphy made the re-
mark attributed to her in his presence on an occasion after September 22
11 The Respondent offered evidence of a conversation between Oscar
Bloodworth, International Representative of the Union, and Samuel
Weintraub concerning the Company's proposal to hold the annual awards
1123
action of bad faith, undermining all of our efforts to
bargain collectively and to undermine the Union.
Under the holiday provisions of the employee rulebook
to which employees of Respondent have access, Good
Friday is listed as one of six holidays which the Respond-
ent observed as a holiday for its employees. Chronologi-
cally the holidays listed in the rule book for observance
are New Year's Day, Good Friday, Independence Day,
Labor Day, Thanksgiving Day, and Christmas.
John Parker testified that it had proven burdensome to
the Company to observe Good Friday as a holiday
because Good Friday falls on varying dates in successive
years and sometimes falls at the end of the intial quarter
of the year and at the commencement of a new quarter. 12
Parker further testified that because of stringent time de-
mands incident to the quarterly voucher system under
which Respondent operates, and quarter-end deadlines of
Federal and State Government reports, manpower needs
are accute in the immediate post-quarter period and the
impact of a holiday magnified this manpower demand.
Parker testified that in light of these considerations, in the
calendar year 1966, the Respondent rescinded the Good
Friday holiday which fell on April 8.
He testified, however, that in the calendar year 1967
the Good Friday holiday fell on March 24 so that, as a
consequence, in the absence of the time considerations
which led to the revocation of the 1966 holiday, the
Respondent granted the Good Friday holiday. In this re-
gard, Parker testified that the quarter-end work demand
reaches its peak during the first week of the ensuing
quarter. He further explained that in 1966 Good Friday
fell on April 8, at the height of the quarter-end workload
whereas, in 1967, the holiday fell just prior to the peak
period which comments to be reached during the last
week of the quarter.
5. The alleged refusal to bargain
(a) The refusal to post union notices
On November 7, the Union sent the Respondent a
letter which, in pertinent part, read as follows:
As the sole collective-bargaining agent for your em-
ployees as certified by the National Labor Relations
Board on May 10, 1966, the Union is herewith
presenting requests for the efficient operation of the
Union's responsibility to the employees, as well as
those of the Company during this interim period
while contract negotiations are in progress.
So that the Union and the Company may have ef-
fective communication between the parties and so
that the employees may avail themselves of the rights
and privileges of Union representation we are
event in Houston Weintraub asked Bloodworth whether the Union had
any objections to the home office employees going to Houston to attend
the awards event Bloodworth assertedly answered that the Union had no
objections "whatsoever " Further, Bloodworth assertedly informed Wein-
traub that Jenny Lee Murphy might take actions to "embarass" the Com-
pany
This evidence that was incorporated in the record under an offer of
proof, which was rejected-erroneously I now conclude and find-is
credited.
12 During the years 1963 through 1967, Good Friday has fallen on the
following dates April 12, 1963, March 27, 1964, April 16, 1965, April
8, 1966 ; and March 24, 1967.
350-212 0-70-72
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requesting that the following procedure be observed
by both parties until such time as contract negotia-
tions may be complete. (sic)
The Union requests space on the bulletin board of
the Company for the purpose of keeping the em-
ployees informed of the progress of negotiations and
other matters that might affect the employees' wel-
fare.
The Company received the letter on November 8, and
on November 11 responded agreeing to provide the
Union "with space on the bulletin board for the purpose
of posting `non-controversial ' notices such as notices of
meetings."
This letter was received on November 14, and sub-
sequently, on December 5, the Union requested the
Respondent to post on its bulletin board a notice ad-
dressed to union members over the signature of the union
bargaining committee. The notice, dated November 29,
recited the Union's May 10, 1966, certification, and pur-
ported to be a report of the progress of negotiations. The
report related to the issues of working conditions, paid
leaves of absence, grievance procedure, seniority, and
wage increases . In addition , under separate heading, the
communication listed the names and telephone numbers
of the three members of the negotiating team and invited
employees to consult, "with the least loss of time or
disruption of work," with one of them or with the union
representative in the plant concerning any problem that
should arise in the plant. Additionally, under the caption
"UNION CARDS-NO INITIATION FEES," the
notice urged the employees to obtain their union cards
"as soon as possible" and gave the Union's temporary ad-
dress . Further, under a separate section of the communi-
cation, the employees were urged to attend a special
membership meeting to be held at union headquarters on
December 7, 1966.
The Respondent refused to post the aforesaid notice
and the Union thereupon requested the Respondent to
post on its bulletin board the following notice contained
on a yellow colored flyer:
NOTICE
IMPORTANT MEETING
On the Agenda-
REPORT ON UNION
CONTRACT NEGOTIATIONS
PRINCIPAL SPEAKERS-
OSCAR BLOODWORTH
Vice President of Office &
Professional Employees
International Union
AFL-CIO
WILLIAM H. OLIVER
Organizing Committee
DATE Wednesday December 7, 1966
TIME 7:30 P.M.
PLACE U.A.W. Headquarters
1190 Walker Avenue,
Memphis
OFFICE & PROFESSIONAL WORKERS UNION -LOCAL 367-
AFL-CIO
RE SURE TO ATTEND
The Respondent, on December 5, denied the Union's
request to post this notice.
Respondent's counsel, Samuel Weintraub, testified that
during collective-bargaining negotiations that had
preceded these refusals, the subject of the right of the
Union to post notices on the company bulletin board had
been discussed. The Union had presented a proposal
which the Company had found unsatisfactory and the
Company, in response, had advanced two separate coun-
terproposals. The counterproposals and the verbal posi-
tion taken by the Company during negotiations were to
the effect, in substance, that the Company would provide
bulletin board space for the Union upon which to post
"noncontroversial" notices to employees, subject to com-
pany approval. Weintraub further testified that at a col-
lective-bargaining meeting on July 27 the Union's chief
spokesman gave his approval to a company counter-
proposal to this effect. At the July 27 meeting the Com-
pany had taken the position that it could not permit the
posting of notices on its bulletin board relating to disputed
or "adversary" matters with the Company, such as a
strike vote. The Respondent, at that meeting, took the
position that its proposal on the table related only to rou-
tine business of the Union such as elections and matters
that did not relate to disputes with the Company. The
Respondent representative at this meeting gave, as an ex-
ample of notices it deemed noncontroversial, notices
relating to votes for shop stewards and matters of like na-
ture relating to internal business affairs of the Union.
Similarly at a November 22 collective-bargaining
meeting the question of bulletin board use was again
discussed and the union representative stated the Union's
desire to post notices on the bulletin board, summarizing
its position with respect to negotiations. However, in
response, the Respondent's counsel, Samuel Weintraub,
at the meeting stated that the Company would not permit
the Union to "debate with the Company on its own
walls" and reiterated the Company's position that the
Company was willing to make bulletin board space
available to the Union for posting of noncontroversial and
routine notices relating to routine meetings and the busi-
ness of the Union. Weintraub further testified that, at the
meeting, the Company specified that the Union would
submit any materials which it desired to post 24 hours in
advance.
With respect to the two notices which the Respondent,
on December 5, refused to permit the Union to post on
its bulletin board, Weintraub further testified that the
union representative appeared at the Company's office
and stated the Union's desire to post the notices, but, ac-
cording to Weintraub's testimony, after he had perused
the two notices sufficiently to ascertain their general con-
tent, he informed the union representative that the notices
were not consonant with the agreement between the
Company and the Union, and denied permission to post
the notices.
(b) The June 5 refusal to bargain
On May 18, Samuel Weintraub conversed by
telephone with William Oliver of the United Automobile
Workers. Oliver had served as principal spokesman for
the Union at the earlier collective-bargaining negotia-
tions. The main topic of their telephone conversation on
this day was the resumption of collective bargaining. Dur-
UNIVERSAL LIFE INSURANCE COMPANY 1 125
ing the conversation , Weintraub challenged the Union's
majority status and asserted that the Union represented
only a "fraction of the people" in the unit . In response to
this challenge Oliver conceded that the Union did not
represent a majority of the employees at that point in
time, but that the Union was pursuing the question of
reinstatement of the 64 strikers.
On the evening of May 18, Weintraub conversed again
with Oliver. Willie Mae Alexander was present. The
question of resuming negotiations was,discussed , and the
issue of the Union's majority status again was questioned
by Weintraub . Weintraub testified that during the conver-
sation in question Oliver said , "We don 't have a majority,
but we have more than you think ." Oliver again under-
scored the fact that the Union was pressing for reinstate-
ment of the strikers.13
Weintraub testified that he advised company represent-
atives of both conversations that he had had with Wil-
liam Oliver.
By letter dated May 22 and signed by representatives
of the Union , the desire of the Union to resume
collective-bargaining negotiations was again expressed.
In pertinent part the letter read as follows:
May I suggest further that we mutually agree on
some acceptable dates for the resumption of said
negotiations between the parties and that such dates
be communicated to Mr. Fred Beck of the Federal
Mediation Service so that we might synchronize
them with the schedules of both parties.
We wish to emphasize that as the certified collec-
tive-bargaining agent of the Company's employees,
we intend to fulfill our duties under the Act and con-
tinue negotiation toward a collective -bargaining
agreement. We are hopeful that you will recognize
and meet your duty to bargain in good faith under the
Act.
By letter of May 26, Samuel Weintraub , on behalf of
Respondent , replied as follows:
Before we respond to your request received Wed-
nesday, May 24, 1967 for contract negotiation
meetings with Universal Life Insurance Company,
we request that you advise us as to whether you
make any claim to represent a majority of our em-
ployees. If you do make any such claim we suggest
that you present proof of such claim to a mutually
agreeable third person or agency for determination.
Your cooperation will be appreciated.
On, May 31 , representatives of the Union responded to
Weintraub by letter reiterating its claim to a present
status as certified collective-bargaining representative,
and its statutory right to represent unit employees under
the certification. The letter contained a further request for
collective-bargaining meetings.
By letter dated June 5, Samuel Weintraub responded
as follows:
On May 22 , 1967 you requested negotiations and
bargaining with Universal Life Insurance Company.
In our letter of May 26 we asked that you state
whether or not you claimed to represent a majority
of our employees, and we further offered to submit
to an impartial third party's determination if you
should make such a claim. From your letter dated
May 31, it appears that you do not claim to represent
a majority of such employees.
As it is clear from independent circumstances that
a majority of your employees do not wish to be
represented by you, we decline to recognize.
C. The Alleged Good-Faith Doubt
John Parker, Respondent's director of employee rela-
tions, testified that after the certification year had ex-
pired, the bargaining committee of which he was a
member, in consultation with Respondent's attorneys,
reached the conclusion that, as a result of the strike that
commenced on July 8, in which 25 employees refused to
participate; the subsequent permanent replacement of ap-
proximately 64 of the striking employees; and as the
further result of the Union's failure to accede to the Com-
pany's request that the Union's claim of majority be sub-
mitted to a third party for determination, the conclusion
was reached that the Union no longer could command
majority support among the employees. Parker further
testified that this conclusion was reinforced by the fact
that the strike replacements had been labeled during the
strike as "scabs" in official publications of the Union and
by pickets patrolling the plant premises.
Conclusions
1. Summary
On May 10, 1966, the Union was certified by the
Board in a unit encompassing approximately 100 of
Respondent's Memphis, Tennessee, home office em-
ployees. Collective bargaining commenced, but, on July
8, 64 of the 99 employees then comprising the unit struck.
Thirty-five refrained from joining the strike. The strike
was an economic one and the 64 strikers were replaced.
On September 12, the 64 strikers, applying en masse for
reinstatement, were informed they had been permanently
replaced.
In the light of a unit complement of nonstrikers and
permanent replacements, Respondent's management, in
consultation with legal counsel, speculated concerning
the Union's continued majority status. Bargaining efforts
continued, however-the Union's certification still via-
ble-but no agreement was achieved between the parties
upon a collective-bargaining agreement.
In this setting, on November 18 and 19, within the cer-
tification year, the Respondent held its annual awards
event at its Houston, Texas, field office which in all previ-
ous years had been held at the Memphis, Tennessee,
home office, and dispatched 70 of the Memphis home of-
fice employees to Houston to attend the event, paying
them a per diem during their absence, and permitting
them to travel during normal working hours, for which
they received their normal salary. The equivalent of a 2-
11 William Oliver concedes conversing by telephone with Weintraub on
May 1$ and conversing with him during the evening of May 18 However,
he denies having engaged in any discussion concerning the majority status
of the Union on either occasion.
Samuel Weintraub testified convincingly concerning the substance of
this conversation and I credit him. Not only did William Oliver seem eva-
sive on cross-examination concerning his conversations with Weintraub
on the subject of union representation, but I am convinced that his recol-
lection of these particular conversations was rendered vague by the ef-
fects of his demanding work schedule and his frequent involvement in a
variety of contract negotiations.
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
day holiday was granted to home office employees who
remained in-Memphis and did not attend the Houston
event.
Approximately 5 weeks later on December 28,
Respondent paid a Christmas bonus to its employees
under a liberalized formula, the ultimate effect of which
was to increase the amount of the bonus to new or short-
tenure unit employees.
These acts were followed some 3 months later, still
within the certification year , by the reinstatement after a
1-year lapse of Good Friday as a paid holiday.
The General Counsel contends that the several and cu-
mulative effect of these actions was to violate the Section
7 rights of employees in the unit . This is so , urges the
General Counsel, because , in prevailing circumstances
the generosity of management was calculated to have a
weaning influence not readily susceptible of successful
counteraction by the Union , fearful of being gauged
deterrent to:Respondent 's superior magnanimity.
The General Counsel does not challenge the Respond-
ent's actions in this regard as unilateral or otherwise vio-
lative of the bargaining obligation under the Act. However,
the General Counsel ; does contend that the Respond-
ent's hostility toward the Union is demonstrated by its
refusal , contemporaneous in time to its other acts in
derogation of employee rights, and after a bargaining
table agreement , to post on its bulletin board union
notices . This refusal , the General Counsel contends, was
violative of the Respondent ' s bargaining obligations
under the Act.
Moreover, similarly violative of the collective -bargain-
ing mandate of the statute , the General Counsel urges,
was Respondent 's June 5 refusal to resume negotiations
looking toward an initial collective-bargaining agreement.
2. Interference , restraint , and coercion
In agreement with the General Counsel I find that in
providing Memphis home office employees with trans-
portation , per diem , and other expenses incident to their
trip to Houston , Texas, to attend the annual awards event;
in granting an increase in Christmas bonus to unit em-
ployees, and in reinstating as a paid holiday Good Friday
for unit employees , the Respondent violated Section
8(a)(1) of the Act.
In support of the complaint , the General Counsel
places principal reliance upon the rationale of the Board
in C & C Plywood Corporation and Veneers , Inc., 163
NLRB 1022, 1024. There, the Board in finding a viola-
tion of Section 8(a)(5) and (1) observed: .
The unilateral grant of wage increases , having oc-
curred only 3 weeks after execution of a new collec-
tive-bargaining agreement, graphically portrayed to
employees that their Employer was in a position to
confer economic benefits that their Union was una-
ble to extract during recent contract negotiations.
Furthermore , the Union, by virtue of the unlawful
conduct , was compelled to take a position which
would hardly prove popular with employees in the
represented unit . Thus, Respondent C & C
Plywood ' s action forced the Union to a choice
between two evils: it could resist the Company's ac-
tion , thereby risking disaffection from the group of
employees whose wage increases it would appear to
oppose in resisting the Company 's unilateral actions,
or it could acquiesce in the Company's action,
thereby demonstrating its unwillingness , if not its in-
ability, to protect and maintain the carefully worked
out wage differentials established in the collective-
bargaining agreement . Either choice would neces-
sarily expose the Union to a charge of unsatisfactory
representation of employee interests and weaken its
prestige and authority as their representative, with
erosion of majority status the probable result.
While C & C Plywood is factually distinguishable from
the case at bar, in the circumstances prevailing at the time
the Respondent took the actions complained of, I find the
rationale of C & C Plywood to be relevant and applicable.
Thus, although the certification was still viable, carry-
ing a presumption of the Union ' s majority status, each of
the parties - Respondent and Union alike-was aware
during the timespan encompassed within the conduct
here alleged to have been violative of Section 8(a)(1) of
the Act that very much in issue was the union , allegiance
of the strike replacements and of those unit employees
who had not joined the strike. In prevailing circum-
stances, the months remaining of the certification year,
until a question concerning representation could be
raised , took on the character of an organizational or
preelection period , with unit employees singularly
susceptible to pocketbook appeals of the Employer.
Moreover , the grant of benefits came at a time when
negotiations were being conducted , looking toward an ini-
tial collective-bargaining agreement , and at a time when,
as observed , the sway of unit employees was of critical
moment. As in C & C Plywood, the Respondent, in grant-
ing the benefits in issue , left the Union with only an un-
seemly choice between two sterile alternatives.
Benefits granted or bestowed for the purpose of un-
dermining or otherwise disparaging the Union in its role
as exclusive collective -bargaining agent violate Section
8(a)(1) of the Act. "The action of employees with respect
to the choice of their bargaining representative may be in-
duced by favors bestowed by the employer as well as his
threats or domination. 1114
Section 8 (a)(1) of the Act prohibits not only intrusive
threats and promises but also conduct immediately
favorable to employees which is undertaken with the ex-
press purpose of impinging upon their freedom of choice
for or against unionization and is reasonably calculated to
have that effect.15
An application of the foregoing principles, by analogy,
to the instant case, dictates the decision which must be
rendered. In face of the Union's certification, the
Respondent , without otherwise engaging in calculated ef-
forts to undermine the Union's standing among the em-
ployees, granted benefits , subtle in their allurement, cal-
culated in the manner of their bestowal to impress em-
ployees with the Company 's generosity . While feigning
obedience to the statutory mandate which imposed upon
the Respondent the obligation to grant and promulgate
benefits only after meaningful consultation with the cer-
tified collective -bargaining representative under delibera-
tive conditions , the Respondent , in fact , presented each
of the changes to the Union in the form and posture of a
fait accompli , obtaining the predictable acquiescence of
" Medo Photo Corp. v. N.L.R.B., 321 U.S. 678, 686.
5 N.L.R.B. v. Exchange Parts Company, 375 U.S. 405. The U.S.
Supreme Court further held that beneficence bestowed unconditionally
and without threat during the pendency of an election is within the
proscription of the Act, even though not a part or ingredient of an overall
program of interference.
UNIVERSAL LIFE INSURANCE COMPANY 1127
the Union which, as found, was left with no other
reasonable alternative. 16 The foreseeable consequence of
Respondent's action was disparagement of the Union in
its present role and denigration of its value as an inter-
mediary and representative of unit employees in the fu-
ture.
It is not significant, in light of the statutory obligation,
outlined above, devolving upon Respondent, and in
further light of the viability of the Union's certification
and the underlying motivation of Respondent in granting
the benefits, that there existed a sound basis for each of
the determinations made which resulted in the modifica-
tion of employee benefits.17 The stratagem here invoked
by Respondent was, I find, contrary to the statutory man-
date, and violative of Section 8(a)(1) of the Act.18
3. The alleged refusal to bargain
(a) The June 5 refusal
Moreover, I further find, under the authority of C & C
Plywood, that this conduct was such as to preclude a find-
ing that, in declining to recognize the Union on June 5,
Respondent entertained a good-faith doubt as to the
Union's majority status.
In C & C Plywood the Board found that an unremedied
unfair labor practice arising from a unilateral change in
wage rates of unit employees was "of such a character
and effect as to preclude Respondents from thereafter
questioning the Union's majority in good faith."' 9 In C &
C Plywood the unilateral announcement and institution of
a premium wage plan was held by the Board to be "injuri-
ous of the union's status as bargaining representatives"
and violative of Section 8(a)(5) and (1) of the Act. The
premium pay plan was instituted 3 months prior to the ex-
piration of the certification year and was continued in ef-
fect during the balance of the certification year.
The bonus, holiday, and related benefits here placed in
effect by Respondent were of a character substantially
akin to the premium wage plan found violative in C & C
Plywood, and the cumulative affect of the separate acts of
beneficence here involved, the last of which occurred 6
weeks before the expiration of the certification year '20
were equally as injurious to the Union's status as bargain-
ing representative. They were, I specifically conclude and
find, calculated to disparage the Union in its role as cer-
tified collective-bargaining agent and, looking to the fu-
ture, were calculated to prevent and forestall the Union
from developing a cohesive following among unit employ-
ees.21
Thus, as the benefits granted by Respondent here are
substantially indistinguishable in character, timing, and
effect from the benefit which the Board, in C & C
Plywood, found precluded the employer from raising the
majority issue in good faith, it follows, perforce, that I
must here, on the basis of C & C Plywood, reject the
Respondent's plea of good-faith doubt
This application of C & C Plywood is not rendered nu-
gatory in this proceeding merely because, as I find,
Respondent had a substantial basis following the strike
and until it committed the unfair labor practices here
found violative of Section 8(a)(1) of the Act, to doubt the
Union's majority.22 Whatever the foundation for the un-
certainty Respondent harbored on this score during the
certification year prior to its unlawful conduct, the com-
mission of the unlawful acts, for the purpose found and
with the foreseeable consequence implicit therein, under
the second prerequisite of the Celanese rule, as applied
by the Board in C & C Plywood, requires a finding, which
I make, that the Respondent was precluded by virtue of
its antecedent unfair labor practices from thereafter
questioning the Union's majority status in good faith.
As a consequence of the foregoing, and as I further
conclude and find that on May 18 and 22 the Union made
valid requests for resumption of collective bargaining and
that on June 5, and thereafter, Respondent refused to
meet and bargain collectively with the Union, the
Respondent violated Section 8(a)(5) and (1) of the Act.23
(b) The refusal to post union notices
However, I find, contrary to the General Counsel, that
Respondent did not violate Section 8(a)(5) and (1) of the
Act by refusing the Union's request to post certain
notices on the company bulletin board.
Respondent had the obligation during the certification
year to give effect to, and to continue in effect, any and all
agreements with the Union consummated as binding and
viable relating to condition of employment of unit em-
ployees. Agreement guaranteeing union access to a plant
bulletin board for the purpose of posting communications
relating to current contract negotiations in which the
16 The record establishes the Union 's acquiescence , but union submis-
siveness borne of an awareness of the superiority of Respondent's
strategic posture may handly be equated either with affirmative approval
or with a declination or waiver of bargaining opportunity Cf Capitol
Aviation , Inc., 152 NLRB 745, 754.
17 C & C Plywood Corporation and Veneers , Inc , supra; May Depart-
ment Stores Company v N L R.B, 326 U S. 376, 383-384 , Medo Photo
Corp v N L.R B , 321 U S 678, 686.
'8 C & C Plywood Veneer , Inc, supra, Medo Photo Corp . v N.L.R.B ,
supra
19 In its decision the Board considered the two essential prerequisites
set forth in Celanese Corporation ofAmerica, 95 NLRB 664 , for finding
that an employer was acting in good faith in questioning a certified union's
majority status These prerequisites under the Celanese decision are that
there must be "some reasonable grounds for believing that the union had
lost its majority status since its certification" and "the majority issue must
not have been raised by the employer in a context of illegal antiunion ac-
tivities , or other conduct by the employer aimed at causing disaffection
from the union or indicating that in raising the majority issue the employer
was merely seeking to gain some time in which to undermine the union "
2° The employees were, of course , aware that the liberalized bonus for-
mula under which the December bonus was granted unit employees would
be annually operative, and thus the bonus action of Respondent here,
while less proximate in its relationship to the end of the certification year,
possessed attributes of continuity that was an ingredient of the premium
pay granted in C & C Plywood
21 In light of this finding , it is of no decisional consequence here, that,
contrary to C & C Plywood, a violation of Section 8(a)(5) of the Act aris-
ing from the grant of benefits to employees is neither alleged nor found
22 Following the strike the unit work force was comprised of non-
strikers and strike replacements and the appellation of "scab" was applied
to strike replacements by the union representatives, constituting convinc-
ing evidence of absence of numerical majority But by virtue of the pre-
sumption which the Board certification imparts, the Respondent was, of
course, not free during the certification year to raise the issue
23 C & C Plywood Corporation, supra The concession of William
Oliver that at the time of the request for resumption of collective bargain-
ing the Union did not command majority status, is not sufficient to over-
come and surplant the combined operative legal effects using from the
commission of unfair labor practices calculated to undermine the
designated collective-bargaining representative and the remedial scheme
designed to effectuate the purposes of the statute. See Medo Photo Corp.
v N L.R B, 321 US. 678.
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor organization , on behalf of the unit employees, is
currently engaging , clearly falls into the aforesaid class.
Once agreement is reached and becomes effective, and
the terms are unambiguous, the employer is not free to su-
perimpose conditions, or to qualify the terms thereof, to
meet his concept of propriety.
However, absent agreement, a labor organization is not
entitled, as a matter of right, to utilize a company bulletin
board for posting notices of the class above discussed,
nor is an employer precluded, as an aspect or element of
his statutory bargaining obligation , from conditioning,
through negotiations , the type, character, subject matter,
or content of the Union's notices to be posted.
The agreement achieved by the parties herein through
correspondence concerning the character and content of
permissible postings is not so unambiguous as to preclude
resort to antecedent bargaining table proposals and
negotiations on the topic. Such an analysis suggests that
there was no meeting of the minds concerning content
and subject matter of notices to be posted, and it further
reveals that the Respondent's concept of the range of per-
missible content was substantially narrower than that of
the Union. Moreover, annexed as a precondition to post-
ing was a 24-hour advanced submission requirement.
An analysis of the terms of the agreement between the
parties, made in the light of the relevant negotiations
preceding the exchange of correspondence comprising
the terms of the agreement, convinces me that in refusing
on December 5 to post the notices submitted that day by
the Union for posting, the Respondent did not act contra-
ry to the literal terms of its agreement with the Union, and
did not, as a consequence, modify or derogate from the
terms of the agreement.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the Respond-
ent's operations described in section I, above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in un-
fair labor practices in violation of Section 8(a)(5) and, in-
dependently, of Section 8(a)(1) of the Act, I shall recom-
mend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of
the Act.
As I have found that the Respondent was precluded by
its antecedent unfair labor practices from questioning the
majority status of the Union in good faith, and in further
light of my findings of the purpose and intent of the
Respondent's conduct which violated the Section 7 rights
of employees, I shall recommend that the Respondent be
ordered, upon request, to bargain collectively with the
Union.
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. Universal Life Insurance Company is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Office & Professional Employees International
Union, Local 367, is a labor organization within the
meaning of Section 2(5) of the Act.
3. Office & Professional Employees International
Union, Local 367, has been, and now is, the exclusive
collective-bargaining representative of a majority of
Respondent's employees in a unit appropriate for the pur-
poses of collective-bargaining within the meaning of Sec-
tion 9(a) of the Act.
4. The following describes the collective-bargaining
unit as a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act:
All office employees at Respondent's Memphis,
Tennessee, office, including clerical employees,
clerks, secretaries, typists, audit clerks, machine
operators, computer programmers, keypunch opera-
tors, researchers (file clerks), statistical clerks, chief
clerks, nurse, PBX operator, printer, messenger,
custodians, and janitors, but excluding all salesmen,
debit agents, watchmen, guards, and supervisors as
defined in the Act.
5. By refusing, on and after June 5, 1967, to bargain
collectively with Office & Professional Employees Inter-
national Union, Local 367, as the exclusive collective-
bargaining representative of all its employees in an ap-
propriate collective-bargaining unit, Respondent has en-
gaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
6, By providing employees in the above-described col-
lective-bargaining unit with a trip from Memphis, Tennes-
see, to Houston, Texas, and return, together with per
diem and paid incidental expenses, by granting them in-
creased Christmas bonus, and by reinstating Good
Friday as a paid holiday for employees in the unit, the
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
[Recommended Order omitted from publication.]